0320110025
05-12-2011
Francisco J. Villarreal, Petitioner, v. John M. McHugh, Secretary, Department of the Army, Agency.
Francisco J. Villarreal,
Petitioner,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Petition No. 0320110025
MSPB No. SF315H110186I1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity
Commission (EEOC) asking for review of a Final Order issued by the Merit
Systems Protection Board (MSPB) concerning his claim of discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq.
On December 8, 2010, Petitioner filed an appeal with the MSPB. In his
appeal, Petitioner alleged that the Agency discriminated against him
on the bases of race (Hispanic) and color (brown) when he was removed
from the Student Trainee position, GS-0899-04, effective November 12,
2010, during his probationary period.1 On February 10, 2011, an MSPB
Administrative Judge (AJ) issued an initial decision finding that the
Board lacked jurisdiction over the matter because Petitioner was a
probationary employee and because he was not alleging discrimination
based on martial status or partisan political reasons. Petitioner did
not file a petition with the full Board to review the initial decision.
Instead, although he was not provided appeal rights to the EEOC, he
filed this instant petition with the EEOC. Petitioner merely provided
a copy of the MSPB initial decision with no statement indicating why he
felt the decision was incorrect.
The record indicates that, on December 28, 2010, Petitioner also filed a
formal complaint regarding his removal with the Agency. The complaint
was designated, Agency No. ARCELA10DEC05280. On January 24, 2011, the
Agency dismissed Petitioner’s formal complaint on the grounds that he
had already filed an MSPB appeal on the same matter. A review of the
EEOC’s records indicates that Petitioner did not file an appeal of
the Agency’s January 24, 2011 final decision.
When the MSPB has denied jurisdiction in such matters, the Commission
has held that there is little point in continuing to view the matter
as a “mixed case” as defined by 29 C.F.R. § 1614.302(a). Thus,
the case will be considered a “non-mixed” matter and processed
accordingly. See generally Schmitt v. Dept. of Transportation, EEOC
Appeal No. 01902126 (July 9, 1990); Phillips v. Dept. of the Army, EEOC
Request No. 05900883 (October 12, 1990); 29 C.F.R. § 1614.302(c)(2)(i)
and (ii). In accordance with these principles, Petition No. 0320110025
is hereby administratively closed, and the matter is referred to the
Agency for further processing as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. § 1614.302(b), the Agency
is required to process the allegations of discrimination pursuant to 29
C.F.R. § 1614.105 et seq. The Agency shall notify Petitioner of the
right to contact an EEO counselor within forty five (45) days of receipt
of this decision, and to file an EEO complaint, subject to 29 C.F.R §�
�1614.107.2 The date on which the Petitioner filed the appeal with the
MSPB shall be deemed the date of initial contact with the EEO counselor.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. You have the
right to file a civil action in an appropriate United States District
Court, based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of the date that you receive this decision.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official Agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization, and
not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__5/12/11________________
Date
1 The Commission considers the term, “Hispanic,” to be an indication
of national origin not race.
2 The Agency is advised that Petitioner’s prior complaint and its
dismissal should not act as an impediment to his filing a new complaint.
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0320110025
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320110025